Terms of Trade

1. Definitions

1.1 “Contract” means the terms and conditions contained herein, together with any quotation, order, invoice or other document or amendments expressed to be supplemental to this Contract.

1.2 “Supplier” means Planet Concrete Group Limited, its successors and assigns or any person acting on behalf of and with the authority of Planet Concrete Group Limited.

1.3 “Customer” means the person/s, entities or any person acting on behalf of and with the authority of the Customer requesting the Supplier to provide the Works as specified in any proposal, quotation, order, invoice or other documentation, and:

1. if there is more than one Customer, is a reference to each Customer jointly and severally; and
2. if the Customer is a partnership, it shall bind each partner jointly and severally; and
3. if the Customer is a part of a Trust, shall be bound in their capacity as a trustee; and
4. includes the Customer’s executors, administrators, successors and permitted assigns.

1.4 “Works” means all Works (including consultation, manufacturing and/or installation services) or Materials supplied by the Supplier to the Customer at the Customer’s request from time to time (where the context so permits the terms ‘Works’ or ‘Materials’ shall be interchangeable for the other).

1.5 “Worksite” means the address nominated by the Customer to which the Materials are to be supplied by the Supplier.

1.6 “Intended Use” means a product and the use thereof, for which the product is intended to be, or is reasonably likely to be, associated with the Works.

1.7 “Non-Conforming Building Product” means building products that are regarded as Non-Conforming for an Intended Use if, when associated with a building:

1. the product is not, or will not be, safe; or
2. does not, or will not, comply with the relevant regulatory provisions; or
3. the product does not perform, or is not capable of performing, for the use to the standard it is represented to conform by or for a person in the chain of responsibility for the product.

1.8 “Confidential Information” means information of a confidential nature whether oral, written or in electronic form including, but not limited to, this Contract, either party’s intellectual property, operational information, know-how, trade secrets, financial and commercial affairs, contracts, client information (including but not limited to, “Personal Information” such as: name, address, D.O.B, occupation, driver’s license details, electronic contact (email, Facebook or Twitter details), medical insurance details or next of kin and other contact information (where applicable), previous credit applications, credit history) and pricing details.

1.9 “Cookies” means small files which are stored on a user’s computer. They are designed to hold a modest amount of data (including Personal Information) specific to a particular client and website, and can be accessed either by the web server or the client’s computer. If the Customer does not wish to allow Cookies to operate in the background when using the Supplier’s website, then the Customer shall have the right to enable / disable the Cookies first by selecting the option to enable / disable provided on the website, prior to making enquiries via the website.

1.10 “Price” means the Price payable (plus any Goods and Services Tax (“GST”) where applicable) for the Works as agreed between the Supplier and the Customer in accordance with clause 6 below.

2. Acceptance

2.1 The Customer is taken to have exclusively accepted and is immediately bound, jointly and severally, by these terms and conditions if the Customer places an order for or accepts delivery of any Works.

2.2 In the event of any inconsistency between the terms and conditions of this Contract and any other prior document or schedule that the parties have entered into, the terms of this Contract shall prevail.

2.3 Any amendment to the terms and conditions contained in this Contract may only be amended in writing by the consent of both parties.

2.4 The Customer acknowledges that the supply of Works on credit shall not take effect until the Customer has completed a credit application with the Supplier and it has been approved with a credit limit established for the account.

2.5 In the event that the supply of Works requested exceeds the Customer’s credit limit and/or the account exceeds the payment terms, the Supplier reserves the right to refuse delivery.

2.6 Electronic signatures shall be deemed to be accepted by either party providing that the parties have complied with Section 226 of the Contract and Commercial Law Act 2017 or any other applicable provisions of that Act or any Regulations referred to in that Act.

3. Errors and Omissions

3.1 The Customer acknowledges and accepts that the Supplier shall, without prejudice, accept no liability in respect of any alleged or actual error(s) and/or omission(s):

1. resulting from an inadvertent mistake made by the Supplier in the formation and/or administration of this Contract; and/or
2. contained in/omitted from any literature (hard copy and/or electronic) supplied by the Supplier in respect of the Works.

3.2 In the event such an error and/or omission occurs in accordance with clause 3.1, and is not attributable to the negligence and/or wilful misconduct of the Supplier; the Customer shall not be entitled to treat this Contract as repudiated nor render it invalid.

4. Authorised Representatives

4.1 The Customer acknowledges that the Supplier shall (for the duration of the Works) liaise directly with one (1) authorised representative, and that once introduced as such to the Supplier, that person shall have the full authority of the Customer to order any Works, Materials and/or to request any variation thereto on the Customer’s behalf. The Customer accepts that they will be solely liable to the Supplier for all additional costs incurred by the Supplier (including the Supplier’s profit margin) in providing any Works, Materials or variation/s requested thereto by the Customer’s duly authorised representative.

5. Change in Control

5.1 The Customer shall give the Supplier not less than fourteen (14) days prior written notice of any proposed change of ownership of the Customer and/or any other change in the Customer’s details (including but not limited to, changes in the Customer’s name, address, contact phone or fax number/s, change of trustees, or business practice). The Customer shall be liable for any loss incurred by the Supplier as a result of the Customer’s failure to comply with this clause.

6. Price and Payment

6.1 At the Supplier’s sole discretion the Price shall be either:

1. as indicated on invoices provided by the Supplier to the Customer in respect of Works performed or Materials supplied; or
2. the Supplier’s Price at the date of delivery of the Works according to the Supplier’s current pricelist; or
3. the Supplier’s quoted Price (subject to clause 6.2) which shall be binding upon the Supplier provided that the Customer shall accept the Supplier’s quotation in writing within thirty (30) days.

6.2 The Supplier reserves the right to change the Price:

1. if a variation to the Materials which are to be supplied is requested; or
2. if a variation to the Works originally scheduled (including any applicable plans or specifications) is requested; or
3. where additional Works are required due to the discovery of hidden or unidentifiable difficulties (including, but not limited to, poor weather, limitations to accessing the Worksite, latent soil conditions, obscured building/Worksite defects, incorrect measurements, plans and/or specifications provided by the Customer, safety considerations (discovery of asbestos, etc.), prerequisite work by any third party not being completed, lack of required utilities, remedial work required due to existing workmanship being of a poor quality or non-compliant to the building code, hard rock below the surface, iron reinforcing rods in concrete or hidden pipes and wiring etc.) which are only discovered on commencement of the Works; or
4. in the event of increases to the Supplier in the cost of labour or materials which are beyond the Supplier’s control.

6.3 Variations will be charged for on the basis of the Supplier’s quotation, and will be detailed in writing, and shown as variations on the Supplier’s invoice. The Customer shall be required to respond to any variation submitted by the Supplier within ten (10) working days. Failure to do so will entitle the Supplier to add the cost of the variation to the Price. Payment for all variations must be made in full at the time of their completion.

6.4 At the Supplier’s sole discretion a deposit may be required.

6.5 Time for payment for the Works being of the essence, the Price will be payable by the Customer on the date/s determined by the Supplier, which may be:

1. on completion of the Works;
2. by way of progress payments in accordance with the Supplier’s specified progress payment schedule. Such progress payment claims may include the reasonable value of authorised variations and the value of any Materials delivered to the Worksite but not yet installed;
3. for certain approved Customers, due twenty (20) days following the end of the month in which a statement is posted to the Customer’s address or address for notices;
4. the date specified on any invoice or other form as being the date for payment; or
5. failing any notice to the contrary, the date which is seven (7) days following the date of any invoice given to the Customer by the Supplier.

6.6 At the agreement of both parties, payment of the Price may be subject to retention by the Customer of an amount (hereafter called the “Retention Money”), being a set amount or equal to a percentage of the Price. The Customer shall hold the Retention Money for the agreed period following completion of the Works during which time all Works are to be completed and/or all defects are to be remedied. Any Retention Money applicable to this Contract is to be dealt with in accordance with Subpart 2A – sections 18(a) to 18(i) of the Construction Contracts Amendment Act 2015.

6.7 Payment may be made by electronic/on-line banking, credit card (a surcharge may apply per transaction), or by any other method as agreed to between the Customer and the Supplier.

6.8 The Supplier may in its discretion allocate any payment received from the Customer towards any invoice that the Supplier determines and may do so at the time of receipt or at any time afterwards. On any default by the Customer the Supplier may re-allocate any payments previously received and allocated. In the absence of any payment allocation by the Supplier, payment will be deemed to be allocated in such manner as preserves the maximum value of the Supplier’s Purchase Money Security Interest (as defined in the PPSA) in the Materials.

6.9 The Customer shall not be entitled to set off against, or deduct from the Price, any sums owed or claimed to be owed to the Customer by the Supplier nor to withhold payment of any invoice because part of that invoice is in dispute, unless the request for payment by the Supplier is a claim made under the Construction Contracts Act 2002.

6.10 Unless otherwise stated the Price does not include GST. In addition to the Price, the Customer must pay to the Supplier an amount equal to any GST the Supplier must pay for any supply by the Supplier under this or any other agreement for the sale of the Materials. The Customer must pay GST, without deduction or set off of any other amounts, at the same time and on the same basis as the Customer pays the Price. In addition, the Customer must pay any other taxes and duties that may be applicable in addition to the Price except where they are expressly included in the Price.

7. Provision of the Works

7.1 Subject to clause 7.2 it is the Supplier’s responsibility to ensure that the Works start as soon as it is reasonably possible.

7.2 The Works’ commencement date will be put back and the completion date extended by whatever time is reasonable in the event that the Supplier claims an extension of time (by giving the Customer written notice) where completion is delayed by an event beyond the Supplier’s control, including but not limited to any failure by the Customer to:

1. make a selection; or
2. have the Worksite ready for the Works; or
3. notify the Supplier that the Worksite is ready.

7.3 At the Supplier’s sole discretion, the cost of delivery is either included in the Price or is in addition to the Price.

7.4 The Supplier may deliver the Works by separate instalments. Each separate instalment shall be invoiced and paid in accordance with the provisions in these terms and conditions.

7.5 Any time specified by the Supplier for delivery of the Works is an estimate only and the Supplier will not be liable for any loss or damage incurred by the Customer as a result of delivery being late. However both parties agree that they shall make every endeavour to enable the Works to be supplied at the time and place as was arranged between both parties. In the event that the Supplier is unable to supply the Works as agreed solely due to any action or inaction of the Customer, then the Supplier shall be entitled to charge a reasonable fee for re-supplying the Works at a later time and date, and/or for storage of the Materials.

8. Worksite Access and Condition

8.1 The Supplier is not responsible for the removal of rubbish from or clean-up of the building/construction Worksite/s. All rubbish generated by the Supplier will be placed in a designated area appointed by the Customer but the responsibility of removal of same is the Customer or the Customer’s agent, unless otherwise agreed.

8.2 It is the intention of the Supplier and agreed by the Customer that:

1. the Customer shall ensure that the Supplier has clear and free access to the Worksite at all times to enable them to undertake the Works (including carrying out Worksite inspections, gain signatures for required documents, and for the delivery and installation of the Materials). The Supplier shall not be liable for any loss or damage to the Worksite (including, without limitation, damage to pathways, driveways and concreted or paved or grassed areas) unless due to the negligence of the Supplier;
2. it is the Customer’s responsibility to provide the Supplier, while at the Worksite, with adequate access to available water, electricity, toilet and washing facilities.

8.3 The Customer agrees to be present at the Worksite when and as reasonably requested by the Supplier and its employees, contractors and/or agents.

8.4 Worksite Inductions:

1. in the event the Customer requires an employee or sub-contractor of the Supplier to undertake a Worksite induction during working hours, the Customer will be liable to pay the hourly charges for that period. If any induction needs to be undertaken prior to the commencement date then the Customer shall be liable to pay the Supplier’s standard (and/or overtime, if applicable) hourly labour rate; or
2. where the Supplier is in control of the Worksite, the Customer and/or the Customer’s third party contractors must initially carry out the Supplier’s Health & Safety induction course before access to the Worksite will be granted. Inspection of the Worksite during the course of the Works will be by appointment only and unless otherwise agreed, in such an event the Customer and/or third party acting on behalf of the Customer must at all times be accompanied by the Supplier.

9. Plans and Specifications

9.1 The Supplier shall be entitled to rely on the accuracy of any plans, specifications and other information provided by the Customer. The Customer acknowledges and agrees that in the event that any of this information provided by the Customer is inaccurate, the Supplier accepts no responsibility for any loss, damages, or costs however resulting from these inaccurate plans, specifications or other information.

9.2 In the event the Customer gives information relating to measurements and quantities of Materials required in completing the Works, it is the Customer’s responsibility to verify the accuracy of the measurements and quantities, before the Customer or the Supplier places an order based on these measurements and quantities. The Supplier accepts no responsibility for any loss, damages, or costs however resulting from the Customer’s failure to comply with this clause.

9.3 The Customer acknowledges and accepts that:

1. the Supplier is entitled to suspend or terminate the supply of Materials or Works (in accordance with clause 7.2 and 22) to the Customer if there is a material change to the scope of Works as a result of inaccurate plans, specifications or other information; and
2. the Customer shall be liable for the Supplier’s costs of de-mobilisation or re-mobilisation of any plant, equipment or staff to or from the Worksite, upon the re-commencement of the Works at the Worksite, if applicable.

10. Risk

10.1 If the Supplier retains ownership of the Materials under clause 15 then:

1. where the Supplier is supplying Materials only, all risk for the Materials shall immediately pass to the Customer on delivery and the Customer must insure the Materials on or before delivery. Delivery of the Materials shall be deemed to have taken place immediately at the time that either:
   1. the Customer or the Customer’s nominated carrier takes possession of the Materials at the Supplier’s address; or
   2. the Materials are delivered by the Supplier or the Supplier’s nominated carrier to the Customer’s nominated delivery address (even if the Customer is not present at the address).
2. where the Supplier is to both supply and install Materials then the Supplier shall maintain a contract works insurance policy until the Works are completed. Upon completion of the Works all risk for the Works shall immediately pass to the Customer.

10.2 Notwithstanding the provisions of clause 10.1 if the Customer specifically requests the Supplier to leave Materials outside the Supplier’s premises for collection or to deliver the Materials to an unattended location then such materials shall always be left at sole risk of the Customer and it shall be the Customer’s responsibility to ensure the Materials are insured adequately or at all. In the event that such Materials are lost, damaged or destroyed then replacement of the Materials shall be at the Customer’s expense.

10.3 The Customer warrants that any structures or ground conditions to which the Materials are to be affixed or erected are able to withstand the installation thereof and are of suitable capacity to handle the Materials once installed including all imposed loadings. If for any reason the Supplier reasonably forms the opinion that the Worksite is not safe, or is not prepared for the Works to proceed, then the Supplier shall be entitled to suspend the Works (in accordance with clause 7.2), until the Supplier is satisfied that it is safe for the Works to proceed.

10.4 Where the Supplier gives advice or recommendations to the Customer, or the Customer’s agent, regarding the suitability of the Worksite for the laying of concrete slabs, foundations or similar works and such advice or recommendations are not acted upon then the Supplier shall require the Customer or their agent to authorise commencement of the Works in writing. The Supplier shall not be liable in any way whatsoever for any damages or losses that occur after any subsequent commencement of the Works.

10.5 Detailed drawings of any services that will be embedded in the concrete are to be provided to the Supplier prior to commencement of any Works. Whilst all due care will be taken no liability will be accepted by the Supplier for damage to the services or any other element embedded in the concrete.

10.6 The Supplier gives no guarantee (expressed or implied) as to the length of time the curing process will take and/or against cracking of concrete that may occur naturally in the Works such as:

1. hairline cracking of paving and grout; or
2. damage caused by contact with chemicals, solvents, oils or any other substances; or
3. the affects by elements such as heat exposure or wet weather conditions that prolong the curing process.

10.7 The Supplier shall not be liable if the Customer does not follow the Supplier’s recommendation to:

1. no foot traffic on the flooring for a minimum of twenty-four (24) hours but preferably seven (7) days;
2. no furniture to be placed on floor for a minimum of forty-eight (48) hours;
3. felt to be placed under furniture legs to reduce any damage by impact or scratching.

10.8 The Customer agrees to indemnify the Supplier from any loss or damage caused by any other tradesmen during and after the completion of the Works. If the Customer instructs the Supplier to rectify any damage caused by any other tradesman, this will become a variation to the original quotation and will be charged at the Supplier’s normal hourly rate as per clause 6.2.

10.9 Measurement of Concreting Works – At the completion of the Works the Customer or the representative of the Customer shall be in attendance and the Works shall then be duly measured. In the absence of either the Customer or their representative the Supplier shall carry out the necessary measurements and forward to the Customer their calculations. If the Customer does not object to the calculations within seven (7) days of receipt of the same then it shall be deemed acceptance of the same and the Works completed.

11. Customer’s Acknowledgements

11.1 The Customer acknowledges that:

1. under no circumstances, will the Supplier handle removal of asbestos product. In the event asbestos (or other toxic/hazardous material) is discovered on the Worksite:
   1. the Supplier shall suspend the Works; and
   2. the Customer shall be fully responsible for the resolution of any resulting problems; and
   3. any additional cost incurred by the Supplier shall be added to the Price under clause 6.2.
2. variations of colour and texture are inherent in concrete. The Supplier shall not be liable for any loss, damages or costs howsoever arising resulting from any variation of the colour or texture between different batches of product; and
3. Materials supplied may:
   1. fade or change colour over time; and
   2. expand, contract or distort as a result of exposure to heat, cold, weather; and
   3. mark, discolour or stain if exposed to certain substances; and
   4. be damaged or disfigured by impact or scratching.
4. concrete density varies through different levels of hardness and, as a result, on completion of the Works the floor appearance may not conform to original expectation; and
5. the Supplier is not responsible for what lies beneath the concrete surface of the contracted work area and therefore the Supplier cannot be held responsible for the floor design, colour or general appearance that emerges after grinding and polishing work has been completed; and
6. concrete is a porous material and as a consequence the Supplier cannot be held responsible for holes and pinholes, however numerous, that appear on the surface after completion of the Works; and
7. due to the consistency of concrete, scratch marks may appear on the surface following the completion of the Works. While the Supplier will exercise due care and diligence to eliminate or minimize such markings, the Customer indemnifies the Supplier against all liability howsoever arising as a result; and
8. it is their responsibility to organise and be liable for all costs associated with protecting the concrete and shall take all reasonable precautions to protect against destruction or damage by way of vandalism. In the event that the surface is destroyed or damaged due to vandalism then the cost of repair or replacement shall be borne by the Customer.
9. The Customer further acknowledges that:
   1. any faults with underlying surfaces or structures may affect the finish of the completed Works; and
   2. where the Supplier has been requested to perform remedial work on damaged surface, evidence of repairs may be apparent after the completion of the Works; and
   3. the Supplier accepts no responsibility for set-outs and grid lines; and
   4. the Supplier shall not at any time be liable for upgrading or relocating existing services on the Worksite.

12. Underground Locations

12.1 Prior to the Supplier commencing any work the Customer must advise the Supplier of the precise location of all underground services on the Worksite and clearly mark the same. The underground mains and services the Customer must identify include, but are not limited to, electrical services, gas services, sewer services, pumping services, sewer connections, sewer sludge mains, water mains, irrigation pipes, telephone cables, fibre optic cables, oil pumping mains, and any other services that may be on the Worksite.

12.2 Whilst the Supplier will take all care to avoid damage to any underground services the Customer agrees to indemnify the Supplier in respect of all and any liability claims, loss, damage, costs and fines as a result of damage to services not precisely located and notified as per clause 12.1.

13. Compliance with Laws

13.1 The Customer and the Supplier shall comply with the provisions of all statutes, regulations and bylaws of government, local and other public authorities that may be applicable to the Works, including any WorkSafe health and safety laws relating or any other relevant safety standards or legislation pertaining to the Works.

13.2 Both parties acknowledge and agree:

1. to comply with the Building Amendment Act 2013, in respect of all workmanship and building products to be supplied during the course of the Works; and
2. that Works will be provided in accordance with any current relevant Australian/New Zealand Standards applicable.

13.3 Where the Customer has supplied products for the Supplier to complete the Works, the Customer acknowledges that it accepts responsibility for the suitability of purpose and are for their Intended Use and any faults inherent in those products. However, if in the Supplier’s opinion, it is believed that the materials supplied are Non-Conforming products and will not conform with New Zealand regulations, then the Supplier shall be entitled, without prejudice, to halt the Works until the appropriate conforming products are sourced and all costs associated with such a change to the plans and design will be invoiced in accordance with clause 6.2.

13.4 The Customer shall obtain (at the expense of the Customer) all licenses and approvals that may be required for the Works.

13.5 The Supplier shall comply with the terms and conditions of all such consents and approvals in so far as such consents and approvals relate to the carrying out of the Works.

13.6 Notwithstanding clause 13.1 and pursuant to the Health & Safety at Work Act 2015 (the “HSW Act”), the Supplier agrees at all times to comply with sections 28 and 34 of the “HSW Act” with meeting their obligations for health and safety laws in the workplace regardless of whether they may be the party in control of the Worksite or where they may be acting as a sub-contractor for the Customer who has engaged a third party head contractor.

14. Insurance

14.1 The Supplier shall maintain a public liability insurance policy indemnifying the Supplier against claims in respect of loss or damage against any property or injury or death or illness to any person arising out of the operations of the Supplier or any of its subcontractors in connection with the execution of the Works.

15. Title

15.1 The Supplier and the Customer agree that ownership of the Materials shall not pass until:

1. the Customer has paid the Supplier all amounts owing to the Supplier; and
2. the Customer has met all of its other obligations to the Supplier.

15.2 Receipt by the Supplier of any form of payment other than cash shall not be deemed to be payment until that form of payment has been honoured, cleared or recognised.

15.3 It is further agreed that:

1. until ownership of the Materials passes to the Customer in accordance with clause 15.1 that the Customer is only a bailee of the Materials and unless the Materials have become fixtures must return the Materials to the Supplier on request;
2. the Customer holds the benefit of the Customer’s insurance of the Materials on trust for the Supplier and must pay to the Supplier the proceeds of any insurance in the event of the Materials being lost, damaged or destroyed;
3. the production of these terms and conditions by the Supplier shall be sufficient evidence of the Supplier’s rights to receive the insurance proceeds direct from the insurer without the need for any person dealing with the Supplier to make further enquiries;
4. the Customer must not sell, dispose, or otherwise part with possession of the Materials other than in the ordinary course of business and for market value. If the Customer sells, disposes or parts with possession of the Materials then the Customer must hold the proceeds of any such act on trust for the Supplier and must pay or deliver the proceeds to the Supplier on demand;
5. the Customer should not convert or process the Materials or intermix them with other goods but if the Customer does so then the Customer holds the resulting product on trust for the benefit of the Supplier and must sell, dispose of or return the resulting product to the Supplier as it so directs;
6. unless the Materials have become fixtures the Customer irrevocably authorises the Supplier to enter any premises where the Supplier believes the Materials are kept and recover possession of the Materials;
7. the Supplier may recover possession of any Materials in transit whether or not delivery has occurred;
8. the Customer shall not charge or grant an encumbrance over the Materials nor grant nor otherwise give away any interest in the Materials while they remain the property of the Supplier; and
9. the Supplier may commence proceedings to recover the Price of the Materials sold notwithstanding that ownership of the Materials has not passed to the Customer.

16. Personal Property Securities Act 1999 (“PPSA”)

16.1 Upon assenting to these terms and conditions in writing the Customer acknowledges and agrees that:

1. these terms and conditions constitute a security agreement for the purposes of the PPSA; and
2. a security interest is taken in all Materials and/or collateral (account) – being a monetary obligation of the Customer to the Supplier for Works – that have previously been supplied and that will be supplied in the future by the Supplier to the Customer.

16.2 The Customer undertakes to:

1. sign any further documents and/or provide any further information (such information to be complete, accurate and up-to-date in all respects) which the Supplier may reasonably require to register a financing statement or financing change statement on the Personal Property Securities Register;
2. indemnify, and upon demand reimburse, the Supplier for all expenses incurred in registering a financing statement or financing change statement on the Personal Property Securities Register or releasing any Materials charged thereby;
3. not register, or permit to be registered, a financing statement or a financing change statement in relation to the Materials and/or collateral (account) in favour of a third party without the prior written consent of the Supplier; and
4. immediately advise the Supplier of any material change in its business practices of selling Materials which would result in a change in the nature of proceeds derived from such sales.

16.3 The Supplier and the Customer agree that nothing in sections 114(1)(a), 133 and 134 of the PPSA shall apply to these terms and conditions.

16.4 The Customer waives its rights as a debtor under sections 116, 120(2), 121, 125, 126, 127, 129, and 131 of the PPSA.

16.5 Unless otherwise agreed to in writing by the Supplier, the Customer waives its right to receive a verification statement in accordance with section 148 of the PPSA.

16.6 The Customer shall unconditionally ratify any actions taken by the Supplier under clauses 16.1 to 16.5.

16.7 Subject to any express provisions to the contrary (including those contained in this clause 16), nothing in these terms and conditions is intended to have the effect of contracting out of any of the provisions of the PPSA.

17. Security and Charge

17.1 In consideration of the Supplier agreeing to supply the Works, the Customer charges all of its rights, title and interest (whether joint or several) in any land, realty or other assets capable of being charged, owned by the Customer either now or in the future, to secure the performance by the Customer of its obligations under these terms and conditions (including, but not limited to, the payment of any money).

17.2 The Customer indemnifies the Supplier from and against all the Supplier’s costs and disbursements including legal costs on a solicitor and own client basis incurred in exercising the Supplier’s rights under this clause.

17.3 The Customer irrevocably appoints the Supplier and each director of the Supplier as the Customer’s true and lawful attorney/s to perform all necessary acts to give effect to the provisions of this clause 17 including, but not limited to, signing any document on the Customer’s behalf.

18. Defects in Materials

18.1 The Customer shall inspect the Materials on delivery and shall within seven (7) days of delivery (time being of the essence) notify the Supplier of any alleged defect, shortage in quantity, damage or failure to comply with the description or quote. The Customer shall afford the Supplier an opportunity to inspect the Materials within a reasonable time following delivery if the Customer believes the Materials are defective in any way. If the Customer shall fail to comply with these provisions the Materials shall be presumed to be free from any defect or damage. For defective Materials, which the Supplier has agreed in writing that the Customer is entitled to reject, the Supplier’s liability is limited to either (at the Supplier’s discretion) replacing the Materials or repairing the Materials.

18.2 Materials will not be accepted for return other than in accordance with clause 18.1 above.

19. Warranties

19.1 Subject to the conditions of warranty set out in clause 19.2 the Supplier warrants that if any defect in any workmanship of the Supplier becomes apparent and is reported to the Supplier within twelve (12) months of the date of delivery (time being of the essence) then the Supplier will either (at the Supplier’s sole discretion) replace or remedy the workmanship.

19.2 The conditions applicable to the warranty given by clause 19.1 are:

1. the warranty shall not cover any defect or damage which may be caused or partly caused by or arise through:
   1. failure on the part of the Customer to properly maintain any Materials; or
   2. failure on the part of the Customer to follow any instructions or guidelines provided by the Supplier; or
   3. any use of any Materials otherwise than for any application specified on a quote or order form; or
   4. the continued use of any Materials after any defect becomes apparent or would have become apparent to a reasonably prudent operator or user; or
   5. fair wear and tear, any accident or act of God.
2. the warranty shall cease and the Supplier shall thereafter in no circumstances be liable under the terms of the warranty if the workmanship is repaired, altered or overhauled without the Supplier’s consent.
3. in respect of all claims the Supplier shall not be liable to compensate the Customer for any delay in either replacing or remedying the workmanship or in properly assessing the Customer’s claim.

19.3 For Materials not manufactured by the Supplier, the warranty shall be the current warranty provided by the manufacturer of the Materials. The Supplier shall not be bound by nor be responsible for any term, condition, representation or warranty other than that which is given by the manufacturer of the Materials.

20. Consumer Guarantees Act 1993

20.1 If the Customer is acquiring Materials for the purposes of a trade or business, the Customer acknowledges that the provisions of the Consumer Guarantees Act 1993 do not apply to the supply of Materials by the Supplier to the Customer.

21. Default and Consequences of Default

21.1 Interest on overdue invoices shall accrue daily from the date when payment becomes due, until the date of payment, at a rate of two and a half percent (2.5%) per calendar month (and at the Supplier’s sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.

21.2 If the Customer owes the Supplier any money the Customer shall indemnify the Supplier from and against all costs and disbursements incurred by the Supplier in recovering the debt (including but not limited to internal administration fees, legal costs on a solicitor and own client basis, the Supplier’s collection agency costs, and bank dishonour fees).

21.3 Further to any other rights or remedies the Supplier may have under this Contract, if a Customer has made payment to the Supplier, and the transaction is subsequently reversed, the Customer shall be liable for the amount of the reversed transaction, in addition to any further costs incurred by the Supplier under this clause 21, where it can be proven that such reversal is found to be illegal, fraudulent or in contravention to the Customer’s obligations under this Contract.

21.4 Without prejudice to the Supplier’s other remedies at law the Supplier shall be entitled to cancel all or any part of any order of the Customer which remains unfulfilled and all amounts owing to the Supplier shall, whether or not due for payment, become immediately payable if:

1. any money payable to the Supplier becomes overdue, or in the Supplier’s opinion the Customer will be unable to make a payment when it falls due;
2. the Customer has exceeded any applicable credit limit provided by the Supplier;
3. the Customer becomes insolvent or bankrupt, convenes a meeting with its creditors or proposes or enters into an arrangement with creditors, or makes an assignment for the benefit of its creditors; or
4. a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Customer or any asset of the Customer.

22. Cancellation

22.1 Without prejudice to any other rights or remedies the Supplier may have, if at any time the Customer is in breach of any obligation (including those relating to payment and/or failure to remedy any breach in respect of this Contract within ten (10) working days of receipt by the Customer of such notice/s) then the Supplier may suspend or terminate the supply of the Works. The Supplier will not be liable to the Customer for any loss or damage the Customer suffers because the Supplier has exercised its rights under this clause.

22.2 The Supplier may cancel any contract to which these terms and conditions apply or cancel delivery of Works at any time before the Works are commenced by giving written notice to the Customer. On giving such notice the Supplier shall repay to the Customer any sums paid in respect of the Price, less any amounts owing by the Customer to the Supplier for Works already performed. The Supplier shall not be liable for any loss or damage whatsoever arising from such cancellation.

22.3 In the event that the Customer cancels the delivery of Works the Customer shall be liable for any and all loss incurred (whether direct or indirect) by the Supplier as a direct result of the cancellation (including, but not limited to, any loss of profits).

22.4 Cancellation of orders for products made to the Customer’s specifications, or for non-stocklist items, will definitely not be accepted once production has commenced, or an order has been placed.

23. Privacy Policy

23.1 All emails, documents, images or other recorded information held or used by the Supplier is “Personal Information” as defined and referred to in clause 23.3 and therefore considered confidential. The Supplier acknowledges its obligation in relation to the handling, use, disclosure and processing of Personal Information pursuant to the Privacy Act 2020 (“the Act”) including Part II of the OECD Guidelines as set out in the Act. The Supplier acknowledges that in the event it becomes aware of any data breaches and/or disclosure of the Customer’s Personal Information, held by the Supplier that may result in serious harm to the Customer, the Supplier will notify the Customer in accordance with the Act. Any release of such Personal Information must be in accordance with the Act and must be approved by the Customer by written consent, unless subject to an operation of law.

23.2 Notwithstanding clause 23.1, privacy limitations will extend to the Supplier in respect of Cookies where the Customer utilises the Supplier’s website to make enquiries. The Supplier agrees to display reference to such Cookies and/or similar tracking technologies, such as pixels and web beacons (if applicable), such technology allows the collection of Personal Information such as the Customer’s:

1. IP address, browser, email client type and other similar details;
2. tracking website usage and traffic; and
3. reports are available to the Supplier when the Supplier sends an email to the Customer, so the Supplier may collect and review that information (“collectively Personal Information”).

If the Customer consents to the Supplier’s use of Cookies on the Supplier’s website and later wishes to withdraw that consent, the Customer may manage and control the Supplier’s privacy controls via the Customer’s web browser, including removing Cookies by deleting them from the browser history when exiting the site.

23.3 The Customer authorises the Supplier or the Supplier’s agent to:

1. access, collect, retain and use any information about the Customer:
   1. including name, address, D.O.B, occupation, driver’s license details, electronic contact (email, Facebook or Twitter details), medical insurance details or next of kin and other contact information (where applicable), previous credit applications, credit history or any overdue fines balance information held by the Ministry of Justice for the purpose of assessing the Customer’s creditworthiness; or
   2. for the purpose of marketing products and services to the Customer.
2. disclose information about the Customer, whether collected by the Supplier from the Customer directly or obtained by the Supplier from any other source, to any other credit provider or any credit reporting agency for the purposes of providing or obtaining a credit reference, debt collection or notifying a default by the Customer.

23.4 Where the Customer is an individual the authorities under clause 23.3 are authorities or consents for the purposes of the Privacy Act 2020.

23.5 The Customer shall have the right to request (by e-mail) from the Supplier, a copy of the Personal Information about the Customer retained by the Supplier and the right to request that the Supplier correct any incorrect Personal Information.

23.6 The Supplier will destroy Personal Information upon the Customer’s request (by e-mail) or if it is no longer required unless it is required in order to fulfil the obligations of this Contract or is required to be maintained and/or stored in accordance with the law.

23.7 The Customer can make a privacy complaint by contacting the Supplier via e-mail. The Supplier will respond to that complaint within seven (7) days of receipt and will take all reasonable steps to make a decision as to the complaint within twenty (20) days of receipt of the complaint. In the event that the Customer is not satisfied with the resolution provided, the Customer can make a complaint to the Privacy Commissioner at www.privacy.org.nz.

24. Suspension of Works

24.1 Where the Contract is subject to section 24A of the Construction Contracts Amendment Act 2015, the Customer hereby expressly acknowledges that:

1. the Supplier has the right to suspend work within five (5) working days of written notice of its intent to do so if a payment claim is served on the Customer, and:
   1. the payment is not paid in full by the due date for payment in accordance with clause 6.5 and/or any subsequent amendments or new legislation and no payment schedule has been given by the Customer; or
   2. a scheduled amount stated in a payment schedule issued by the Customer in relation to the payment claim is not paid in full by the due date for its payment; or
   3. the Customer has not complied with an adjudicator’s notice that the Customer must pay an amount to the Supplier by a particular date; and
   4. the Supplier has given written notice to the Customer of its intention to suspend the carrying out of construction work under the construction Contract.
2. if the Supplier suspends work, it:
   1. is not in breach of Contract; and
   2. is not liable for any loss or damage whatsoever suffered, or alleged to be suffered, by the Customer or by any person claiming through the Customer; and
   3. is entitled to an extension of time to complete the Contract; and
   4. keeps its rights under the Contract including the right to terminate the Contract; and may at any time lift the suspension, even if the amount has not been paid or an adjudicator’s determination has not been complied with.
3. if the Supplier exercises the right to suspend work, the exercise of that right does not:
   1. affect any rights that would otherwise have been available to the Supplier under the Contract and Commercial Law Act 2017; or
   2. enable the Customer to exercise any rights that may otherwise have been available to the Customer under that Act as a direct consequence of the Supplier suspending work under this provision;
4. due to any act or omission by the Customer, the Customer effectively precludes the Supplier from continuing the Works or performing or complying with the Supplier’s obligations under this Contract, then without prejudice to the Supplier’s other rights and remedies, the Supplier may suspend the Works immediately after serving on the Customer a written notice specifying the payment default or the act, omission or default upon which the suspension of the Works is based. All costs and expenses incurred by the Supplier as a result of such suspension and recommencement shall be payable by the Customer as if they were a variation.

24.2 If pursuant to any right conferred by this Contract, the Supplier suspends the Works and the default that led to that suspension continues un-remedied subject to clause 22.1 for at least ten (10) working days, the Supplier shall be entitled to terminate the Contract, in accordance with clause 22.

25. Service of Notices

25.1 Any written notice given under this Contract shall be deemed to have been given and received:

1. by handing the notice to the other party, in person;
2. by leaving it at the address of the other party as stated in this Contract;
3. by sending it by registered post to the address of the other party as stated in this Contract;
4. if sent by facsimile transmission to the fax number of the other party as stated in this Contract (if any), on receipt of confirmation of the transmission;
5. if sent by email to the other party’s last known email address.

25.2 Any notice that is posted shall be deemed to have been served, unless the contrary is shown, at the time when by the ordinary course of post, the notice would have been delivered.

26. Trusts

26.1 If the Customer at any time upon or subsequent to entering in to the Contract is acting in the capacity of trustee of any trust (“Trust”) then whether or not the Supplier may have notice of the Trust, the Customer covenants with the Supplier as follows:

1. the Contract extends to all rights of indemnity which the Customer now or subsequently may have against the Trust and the trust fund;
2. the Customer has full and complete power and authority under the Trust to enter into the Contract and the provisions of the Trust do not purport to exclude or take away the right of indemnity of the Customer against the Trust or the trust fund. The Customer will not release the right of indemnity or commit any breach of trust or be a party to any other action which might prejudice that right of indemnity;
3. the Customer will not without consent in writing of the Supplier (the Supplier will not unreasonably withhold consent), cause, permit, or suffer to happen any of the following events:
   1. the removal, replacement or retirement of the Customer as trustee of the Trust;
   2. any alteration to or variation of the terms of the Trust;
   3. any advancement or distribution of capital of the Trust; or
   4. any resettlement of the trust property.

27. Non-Compete

27.1 The Customer agrees that during the term of this Contract, the Customer must not:

1. solicit, canvass, approach or accept any approach from the Supplier’s relationships with other customers, suppliers and employees with a view to obtaining the Customer’s services; or
2. interfere with the relationship between the Supplier and the Supplier’s relationships with other customers, suppliers and employees.

27.2 The Supplier may require the Customer to provide evidence confirming to the satisfaction of the Supplier that the Customer is not in breach of clause 27.1(a) or 27.1(b).

27.3 The Customer acknowledges that:

1. each restriction specified in clause 27.1(a) and 27.1(b) is in the circumstances reasonable and necessary to protect the Supplier’s legitimate business interests, including, but not limited to, the Supplier’s interest in protecting:
   1. Confidential Information;
   2. the Supplier’s relationships with other customers, suppliers and employees; and
   3. the goodwill of the Supplier’s business; and
   4. damages are not an adequate remedy for a breach of this clause.

28. General

28.1 Any dispute or difference arising as to the interpretation of these terms and conditions or as to any matter arising hereunder, shall be submitted to, and settled by, either adjudication in accordance with section 26 of the Construction Contracts Act 2002 and/or by arbitration in accordance with the Arbitration Act 1996 or its replacement(s).

28.2 The failure by either party to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect that party’s right to subsequently enforce that provision. If any provision of these terms and conditions shall be invalid, void, illegal or unenforceable the validity, existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.

28.3 These terms and conditions and any contract to which they apply shall be governed by the laws of New Zealand and are subject to the jurisdiction of the Auckland courts, New Zealand.

28.4 The Supplier shall be under no liability whatsoever to the Customer for any indirect and/or consequential loss and/or expense (including loss of profit) suffered by the Customer arising out of a breach by the Supplier of these terms and conditions (alternatively the Supplier’s liability shall be limited to damages which under no circumstances shall exceed the Price of the Works).

28.5 The Supplier may licence and/or assign all or any part of its rights and/or obligations under this Contract without the Customer’s consent.

28.6 The Customer cannot licence or assign without the written approval of the Supplier.

28.7 The Supplier may elect to subcontract out any part of the Works but shall not be relieved from any liability or obligation under this Contract by so doing. Furthermore, the Customer agrees and understands that they have no authority to give any instruction to any of the Supplier’s sub-contractors without the authority of the Supplier.

28.8 The Customer agrees that the Supplier may amend their general terms and conditions for subsequent future contracts with the Customer by disclosing such to the Customer in writing. These changes shall be deemed to take effect from the date on which the Customer accepts such changes, or otherwise at such time as the Customer makes a further request for the Supplier to provide Works to the Customer.

28.9 Neither party shall be liable for any default due to any act of God, war, terrorism, strike, lock-out, industrial action, fire, flood, storm or other event beyond the reasonable control of either party.

28.10 Both parties warrant that they have the power to enter into this Contract and have obtained all necessary authorisations to allow them to do so, they are not insolvent and that this Contract creates binding and valid legal obligations on them.

Planet Concrete Group Limited
Phone: 0800 774 474
Email: sales@planetgroup.co.nz